With All Due Deference by Linda Greenhouse

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Ruling Defends Affirmative Action From New Challenges

Given the avalanche of world-shaking news since last week, the shrug greeting the latest chapter in the long-running affirmative action saga at the University of Texas is understandable. Even the usually lively constitutional law blogosphere has had little to say about the July 15 ruling by which the federal appeals court in New Orleans once again upheld the flagship Austin school’s admissions plan.

The silence almost makes it hard to recall that just over a year ago, the country was holding its breath for the Supreme Court’s decision in this case, Fisher v. University of Texas, which promised a definitive judgment on the future of affirmative action in the Roberts court era. But for the conservative justices who had reached out to take the case, Fisher ended up as a failed project. There was no sweeping new ruling; instead, badly divided while straining to appear united, the court labored for nearly nine months and brought forth a fig leaf, a 13-page, 7-to-1 opinion that told the judges of the United States Court of Appeals for the Fifth Circuit to apply more skepticism to the university’s defense of its admissions plan.

Minimal as it was, with a tepid reaffirmation of universities’ “compelling interest” in achieving and maintaining racial diversity, the decision last June alarmed the world of higher education, where race is commonly — even if marginally — a factor in the overall admissions picture. The concern focused on the portion of Justice Anthony M. Kennedy’s majority opinion that dealt with the requirement that any affirmation action program be “narrowly tailored,” using race as little as possible to achieve the goal of diversity.

Narrow tailoring, Justice Kennedy said, meant that the university bore “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” In making its case to a court, he said, “the university receives no deference.” The Fifth Circuit’s mistake, the court said, lay in “deferring to the university’s good faith in its use of racial classifications.” Forget good faith, accord no deference, and try again, was the message.

And now we have the Fifth Circuit’s answer. “Affording no deference, we look for narrow tailoring,” was how Judge Patrick E. Higginbotham, following instructions, began the heart of his 41-page opinion. He was joined by Judge Carolyn Dineen King. The third member of the panel was Judge Emilio Garza, who dissented.

http://www.nytimes.com/2014/07/24/opinion/ruling-defends-affirmative-action-from-new-challenges.html?&hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=0